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Risks of Going to Trial in a Personal Injury Case Here in New York

You were injured.

Badly.

By someone else's carelessness.

Maybe it was a careless driver.

Maybe it was a doctor who violated the basic standards of medical care.

Maybe it was a pharmacy that gave you the wrong dosage of medication.

Maybe it was a company that manufactured a defective product.

You know in your heart of hearts that the only reason you are now injured is because of someone else's carelessness.

Someone else's negligence.

Someone else's lack of ordinary reasonable care.

You know that your injuries are permanent.

Your doctors confirm this.

You need additional medical care to treat you into the future.

You likely will need corrective surgery.

Your doctors tell you that no matter what you do, you'll never be the same as before you were injured.

You will always have the scars.

You will always walk with a limp.

You are now unable to do your life's activities the way you did before you got hurt.

You also have difficulty working.

Your job duties are limited.

Your prospects for advancement are gone.

Your chances of getting a higher paying job in your former employment is over.

In fact, you don't believe you could ever do the type of work you did as a result of your injuries.

You are worried.

You are scared.

You have a spouse.

You have kids.

You need to feed your family. You need to provide clothes for them.

What will you do if you cannot earn a living to support them?

How will you survive?

You realize that the only way you can obtain full and fair compensation for all the harms, losses and injuries you suffered is to bring a lawsuit against the people who caused you these injuries.

You feel you have a very strong case.

Your attorney feels you have a solid case.

You know that in your heart of hearts if your case gets to trial, the jury will see it your way.

You believe there is no other possible way a jury could decide in favor of the people who caused your injuries.

In fact, you believe it to be impossible.

Remarkably, the defense refuses to acknowledge they did anything wrong.

In fact, they claim that YOU caused and contributed to your own injuries.

The defense argues that YOU were the one who caused your injuries, not them.

They also argue that even if they are partially at fault, you are also to be blamed for your own injuries.

Since they refuse to acknowledge or admit that they did anything wrong, your attorney advises that you have no choice but to go to trial.

You say "Fine. Let's do it. I have nothing to lose."

You're confident.

You're self-assured.

You are sure that when you go to trial the jury will have no other option but to recognize that you are entitled to be paid for all the harms and injuries you suffered.

As you are preparing to go to trial, your attorney sits you down and tells you the facts of life.

He tells you that as in life, there are never any guarantees.

You know that already.

You have accepted that fact.

But you also acknowledge that you have a very strong case.

You know that there is no way a jury will find against you.

Your attorney tells you otherwise.

Here are the risks of going to trial...

  1. You could lose.
  2. You could win.
  3. You could win but the jury finds that you are partially at fault for causing your injuries.
  4. You could get a mixed verdict which means the jury was confused about what they needed to do.
  5. You could win but the jury gives you significantly less money than you believe you should be receiving.
  6. You could win and the jury gives you significantly more money than what you ask for.

The reality is that going to trial is a risk for both sides.

The defense takes a risk that a jury will come back with a verdict in your favor for a very significant amount of money, over and above whatever insurance coverage there is available for their client. In that instance, they will have no choice but to appeal in order to try and reduce the amount of the verdict or to get it thrown out.

Likewise, an injured victim takes a risk going to trial.

If the defense makes a significant settlement offer prior to trial and now you decide you want to reject that amount of guaranteed money and instead opt for what a jury might do, you are taking a risk.

Your attorney will discuss with you your tolerance for risk.

There are some people who like to gamble and take risks.

They enjoy going to Las Vegas and playing craps.

They enjoy playing roulette and blackjack.

They enjoy the thrill of risks and the chance that they could lose everything.

On the other hand, there is always the possibility that they could win more.

However, if you examine hard cold statistics showing the likelihood of winning a significant amount of money in Las Vegas, you will see that these games of “chance” are really stacked in favor of the casinos.

Along the same lines, the majority of medical malpractice cases that go to trial are typically won by doctors and hospitals. That statistic is hard, cold reality.

Now, in this scenario where the defense refuses to offer you a dime, you have no choice but to go to trial and have a jury reach a decision.

In that instance, you have no choice but to take a verdict.

In that scenario the major risk associated with taking a verdict is the possibility that you could lose even though you believe you have a solid case and you have medical experts to support your claim.

There are some injured victims who believe that since they are not paying anything out of their own pocket up front that they have nothing to lose by going to trial.

They don't pay an hourly fee to their attorney nor do they pay for the medical experts and other experts that must come in to testify and must be paid. In the event they lose the trial, they think it's no skin off their own back since they have not had to lay out any money to prosecute the case and to take the case to trial.

This occurs because lawyers who handle accident cases and medical malpractice cases and wrongful death cases in New York take these cases on contingency.

That means that your lawyer only gets paid if he is successful in obtaining money for you and your injuries.

If your attorney is not successful and you lose your trial, that means the attorney has lost his entire investment of time, energy and significant resources to prosecute your case.

You walk away emotionally exhausted but no worse for wear.

It's important to face reality.

There are significant risks for both sides when going to trial.

Really smart trial attorneys continue to assess those risks before during and after a trial has taken place.

You should know that the defense does the same thing.

That's why there are some instances during the course of trial where the defense will begin to negotiate in an attempt to try and settle the case.

There are some injured victims who are shocked when an attempt to negotiate occurs during the middle of their trial.

They think that the defense has now capitulated and recognizes for the first time in years that a jury may ultimately find them responsible for your injuries.

Another reality-based fact is that if the defense decides to begin negotiating during the course of trial, it's because they have assessed the risk and now, from a business standpoint, realize it might be in their best interests to try and settle this case before a jury gets their hands on that verdict sheet.

If the defense makes an offer during trial, your attorney must have a detailed discussion with you to discuss the risks, benefits and alternatives to accepting or rejecting this offer.

You also need to know that during trial, there will be emotional highs and lows as if you are on a roller coaster.

There will be times when testimony appears to be extremely favorable to your case. There will be other times during cross examination where you believe you have lost your case and the defense is flying high.

Clients have told me reportedly that being in court watching the trial is the same as being on an emotional roller coaster.

You must also recognize that when you go to trial, you are expected to be in court each and every day for the full day.

You must be there listening to witnesses.

You must be there for opening arguments.

You must be there for cross examination.

You must be there at all times.

If you are not, then the jury will believe that you are not interested in the outcome of your case.

If you are not interested in your case, how can the jury justify giving a verdict in your favor, assuming you have shown that you are more likely right than wrong and are entitled to a verdict in your favor.

There are some injured victims who want their trial to proceed but don't want to participate in the case other than coming in to testify.

That may work for a busy doctor who is seeing patients on a daily basis.

But for an injured victim, we require that you be in court each and every day, even if it means having to tell your employer that you will be out of work for a number of days or weeks.

You should also know that going through trial is stressful.

It's a strange environment.

There are lots of unknowns.

You'll likely see the people you have sued each and every day as you enter the courtroom.

I've seen many litigants engage in staring contests during testimony.

I know what the injured victim is thinking. 

You can see it in their face.

That does have an emotional toll.

Having to sit and listen the defense attorney call you a liar using politically correct language is not easy.

Having a defense attorney claim that you have an ulterior motive to bringing your lawsuit can be painful.

Listening to someone try and malign your credibility is very challenging.

Let's get back to reality again...

When you believe you suffered significant harm as a result of someone else's carelessness, you have an absolute legal right to seek compensation for all the harms, injuries and losses you experienced. That's the law here in New York.

If the defense believes they did nothing wrong and they've chosen not to offer any money or attempt to negotiate, you have no choice but to go to trial and to have a jury determine whether you are entitled to verdict in your favor.

If they do make an offer, you now have to carefully weigh the risks of accepting or rejecting the offer.

To learn more about this topic, I invite you to watch the video below...

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer